Lee-Hirons, R (on the application of) v The Secretary of State for Justice & Anor

For a conditionally discharged restricted patient recalled under section 42(3) of the Mental Health Act 1983, neither the common law nor Article 5.1 requires written reasons, or full reasons, when the warrant is executed. Article 5.2 requires prompt and adequate information, but it may be supplied after detention. A bare statement that mental health has deteriorated is insufficient by itself, although an initial brief explanation may be followed by full reasons. Breach of the duty to provide reasons within 72 hours does not invalidate a lawful recall or detention unless the breach was material to the decision to detain. The appeal was dismissed.

The appellant had been conditionally discharged following a hospital order and restriction order under the Mental Health Act 1983. The Secretary of State recalled him under section 42(3). The warrant gave no reasons, and he was initially told only that his mental health had deteriorated. A fuller explanation was provided more than two weeks later.

Dingemans J dismissed the judicial review claim, holding that the recall and detention were lawful: [2013] EWHC 1784 (Admin). The appeal concerned whether reasons had to be written or given immediately, whether the explanation given was adequate and whether any failure invalidated the recall or detention.

1. Disposition. The appeal was dismissed. Sir Stanley Burnton gave the judgment, with Lord Justice Jackson and Lord Justice Patten agreeing.
2. Timing and form of reasons. Article 5.1 does not require reasons for a patient’s detention to be given at the moment of recall, still less in writing. Article 5.2 requires the patient to be promptly and adequately informed of the factual and legal basis of the detention. It does not require the whole explanation to be given immediately. A written explanation within 72 hours, as required by HSG (93) 20 and LAC(93)9, would satisfy the obligation in principle.
3. Adequacy of the initial explanation. The statement that the appellant’s mental health had deteriorated would have been insufficient if it had been the only explanation. It was, however, intended as a brief preliminary explanation, with fuller reasons to follow. The common law did not require more at the moment of execution, particularly given the urgency of recall decisions and the practical possibility that the warrant might be executed by a person unable to give a detailed medical explanation.
4. Wooder. R (Wooder) v Feggetter and another [2002] EWCA Civ 554; [2003] QB 219 did not require a different result. That case concerned whether reasons were required for a SOAD certificate, not the form of reasons for an urgent recall. Its context was materially different, and Sedley LJ’s observations concerning reasons in useful form were obiter.
5. Effect of the breach. The Secretary of State breached Article 5.2 and his policy by failing to provide full reasons within 72 hours. Under R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, a public-law breach invalidates detention only where it is material to, and bears on, the decision to detain. The delay in providing reasons did not affect the original decision to recall or detain. The breach therefore did not make the recall or detention unlawful.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the conclusion that the recall and detention were lawful.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Dingemans J dismissed the judicial review claim on 28 June 2013, holding that the Secretary of State’s decision and the appellant’s detention were lawful: [2013] EWHC 1784 (Admin).